Research On The Processing Rules Of Executory Contract In Bankruptcy Proceedings

The bankruptcy law of the People's Republic of China is a law promulgated in2007,which guaranteed the fair realization of the legitimate rights and interests of all creditors when the debtor loses its solvency as wel asl safeguard the interests of society and the normal economic order.Since an enterprise enters into bankruptcy proceedings,it will be unable to fully perform its contractual obligations.In order to protect the interests of all creditors to the utmost extent,Article 18 of the Bankruptcy Law provides that the administrator has the right to decide whether to terminate or continue the performance of a contract that has not been fulfilled by both parties.This legislative provision grants the administrator the right to choose among the pending contracts in the bankruptcy proceedings.However,it has not further defined the "Executory Contract",resulting in the judicial determination of the relevant issues in a predicament;With the necessary restrictions,the absence of the manager's exercise of the criteria for selection will inevitably lead to the misuse of the administrator's right to choose.In addition,it is still necessary to legislate whether the parties to the contract have the right to transfer the contract after one party enters bankruptcy proceedings.In order to effectively solve the conflict of interest between bankrupt debtors and creditors caused by imperfect contract processing rules in bankruptcy proceedings,this paper uses comparative research and empirical analysis methods to deal with the pending contracts in bankruptcy proceedings in China in four parts:The first part of the paper defines the pending contract in the bankruptcy procedure,and considers that the pending contract in the bankruptcy proceedings should be the dual obligation of the bankrupt debtor and the creditor before the bankruptcy application is accepted and entered into force,and the effect continues until the bankruptcy process begins.The contract,and both parties have not fulfilled their respective contractual obligations.The second part of the thesis analyzes the connection between the bankruptcy law and the contract law to deal with the pending contract in the bankruptcy proceedings,the way the bankruptcy law deals with the pending contract in the bankruptcy proceedings,the establishment of the bankruptcy administrator's right to choose,and the need to perform the contract in the bankruptcy proceedings.In accordance with the principle,the contents of the rules to be fulfilled in thebankruptcy proceedings are thoroughly analyzed,and on the basis of this,the third part of the dissertation combs the problems existing in the processing of the pending rules in the bankruptcy proceedings.First of all,China's bankruptcy law still has the problem that the concept and scope of the contract to be fulfilled are not clear enough.This will lead to the completion of the contract by one party as a pending contract.Second,Article 18 of the Bankruptcy Law of China only provides for the cancellation of the contract.Continuing to perform the two treatment methods,there is no clear stipulation as to whether or not the performance of the contract can be transferred.The unclear treatment method has caused the judicial referee to be indifferent and on the other hand not conducive to the maximization of the bankruptcy property;in addition,the bankruptcy law insolvency administrator The criteria for the exercise of the right to choose are not yet clear.This will not only lead to the misuse of the option of the bankruptcy administrator,but also to the supervision of the people's courts and the creditors' meeting to exercise the option of the administrator.In the fourth part of the paper,the legal concept and range of the contract to be performed are ambiguous.It is recommended that the parties to the contract to be performed in the bankruptcy proceedings should be the counterparty and the bankrupt debtor.The contract implementation stage should be in the bankruptcy process and the bankruptcy application should be filed.Before the admissibility of the contract has been established;for the issue of whether the transfer of the contract to be performed is unclear,it is considered that the third party is required to provide the necessary guarantee,and the bankrupt debtor should be allowed to transfer the contract;[to verify this view,verify whether it is consistent with the original intention of the paper,Whether it is feasible to solve the problem that the specific criteria to be exercised by the manager's right to choose are not clear,it is suggested that the relevant legislation or judicial interpretation clearly stipulates that the insolvency administrator should exercise the option to maximize the bankruptcy property,and draws on the US law."Business judgment" is used as a criterion for judging the illegality of the option of the bankruptcy administrator;in view of the fact that disclosure of information in the bankruptcy proceedings has an important impact on both parties to the performance of the contract,the paper combines the legislation of the United States,Britain,and Taiwan,and the bankruptcy procedure of the country.After the system of information disclosure Also put forward the corresponding improvement proposals.